A recent Ohio Supreme Court decision has answered the question of whether an injured employee seeking workers' compensation can allege for the first time in court that a medical condition was "aggravated" as opposed to "directly caused" by a work-related accident or environment.

In the just-released Starkey v. Builders FirstSource Ohio Valley, L.L.C., the Supreme Court upheld a Court of Appeals decision, ruling that a claimant may indeed pursue an allegation for an aggravation of a condition even where previously, at the Ohio Industrial Commission (IC) level, the claimant only alleged direct causation. The decision also suggests that a claimant must raise direct causation and aggravation allegations in a single claim, and cannot file separate claims (one under each theory).

In the prior case of Ward v. Kroger Co., the Ohio Supreme Court had limited workers' compensation court appeals from final decisions of the IC to appeals covering only those medical conditions addressed in the IC order from which the appeal is taken. Left open was the question of whether a claimant in a court appeal can for the first time allege that a medical condition was "aggravated," as opposed to "directly caused," by the alleged work-related accident or environment in question. Subsequent to the Ward case, various appellate courts had issued conflicting decisions on whether a claimant could switch from making a "direct causation" argument in front of the IC to making an "aggravation" argument before a common pleas jury (or, for that matter, vice versa).

Employee moved to amend claim

In Starkey, the employee, while working as a service technician for Builders FirstSource Ohio Valley, LLC (Builders), felt pain in his left hip as he leaned to avoid being knocked off a ladder. Starkey received workers' compensation for "sprain hip & thigh, left; sprain lumbosacral; enthesopathy of left hip; tear left hamstring; glenoid labrum tear of left hip; venous embolism deep vein thrombosis left leg; and degenerative joint disease left hip." Starkey then moved to amend his claim to include "degenerative osteoarthritis of the left hip." The Industrial Commission allowed the additional allowance but Builders appealed the decision to the Hamilton County Common Pleas Court. Starkey's physician testified that Starkey suffered from degenerative osteoarthritis of the left hip and that his work-related injury "directly aggravated" his pre-existing osteoarthritis. Builders moved for a dismissal, arguing that a claimant may seek to participate in the workers' compensation fund in the common pleas court only for those conditions addressed in the administrative order and that, because Starkey asserted a new condition on appeal, he could not participate in the fund for that condition. The trial court agreed and entered judgment for Builders.

The Court of Appeals reversed the trial court order, opining that Starkey had alleged the same medical condition, degenerative osteoarthritis, both administratively and in common pleas court. The Court further opined that by arguing aggravation of degenerative osteoarthritis in common pleas court, he merely changed the type of causation. Builders appealed to the Ohio Supreme Court, arguing that an allegation that a work-related injury caused a medical condition does not include an allegation that an injury aggravated a pre-existing medical condition because they involve separate conditions "with differing medical and legal criteria" and therefore constitute different claims. Builders also argued that because a claimant cannot seek to participate in the fund on appeal for a condition that has not been presented to the Industrial Commission, that such conditions should not be raised for the first time at the common pleas court level.

The Ohio Supreme Court held that: (1) because aggravation of a pre-existing medical condition is a type of causation, it is not a separate condition or distinct injury as defined in the Ohio Revised Code; and (2) an appeal taken pursuant to the Code allows a claimant to present evidence on any theory of causation pertinent to a medical condition that already had been addressed administratively. The Supreme Court held that a claimant is not required to advance a specific theory of causation at the administrative level if he or she wishes to use that theory at the trial court level because the Revised Code allows for introduction of new evidence provided it relates to the same medical condition or injury. The Court noted that even the Industrial Commission Hearing Officer's Manual specifically requires a hearing officer to consider evidence of both direct causation and aggravation as a potential cause for a condition.

Effect on future claims

The Starkey decision suggests a number of interesting extensions. First, language suggests that not only would a claimant be permitted to pursue alternate theories of "direct causation" and "aggravation" in common pleas court even where not pursued before, a claimant might actually be required to do so. Starkey suggests that a claimant could not file one claim for "direct causation," and then, if unsuccessful, file a new claim for "aggravation." Rather, a claimant would be required to pursue both theories in one claim filing.

Another issue perhaps affected by Starkey is the question of whether a claimant can file separate claims for an "injury" and "occupational disease" for essentially the same medical condition. Certain language in Starkey suggests that "injury" and "occupational disease" may be separate theories of causation and, therefore, a claimant would be required to pursue both in one claim filing.

While the employee prevailed in the Starkey case, the decision can also be seen as a positive one for Ohio employers in that it promotes efficiency in workers' compensation cases, and it should work to discourage separate claim filings over the same medical condition allegedly arising from the same incident or environment. It also gives employers additional legal ammunition to argue that a new claim filing is really just a "repackaging" of a prior denied claim and is now barred under the Starkey decision.